In recent years, advances in medical science have left the legal community
with a wide array of social, ethical, and legal problems previously unimaginable.
Historically, legislative and judicial responses to these advances lagged behind
the rapid pace of such developments. The gap between the scientist's question,
"Can we do it?," and the lawyer's question, "Should/may we do it?" is most evident
in the field of cryonics, with its technique of cryonic, or cryogenic, suspension.
In cryonic suspension, a legally dead but biologically viable person is preserved
at an extremely low temperature until advances in medical science make it possible
to revive the person and implement an effective cure. The terminally ill patient
who wishes to benefit from such treatment is faced with the dilemma that present
life must be ceased with hope of future recovery. As a result, the process challenges
our traditional notions of death and the prospects of immortality while raising
a host of concomitant legal dilemmas. Some facets of this dilemma are exemplified
by Donaldson v. Van de Kamp. In Donaldson, Thomas A. Donaldson
sought the declaration of a constitutional right to premortem cryonic suspension
of his body and the assistance of others in achieving that state. Donaldson,
a forty-six-year-old mathematician and computer software scientist, suffers
from a malignant brain tumor that was diagnosed by his physicians in 1988. This
tumor is inoperable and continues to grow and invade his brain tissue. Donaldson's
condition will gradually deteriorate into a persistent vegetative state and
will ultimately result in death. Physicians predict his probable death by August
1993. Donaldson petitioned the California courts, seeking a declaration that
he had a constitutional right to achieve cryonic suspension before his natural
death. His doctors believe that if Donaldson waits until his natural death to
be suspended, future reanimation will be futile because the tumor will have
destroyed his brain. In addition, Donaldson's doctors sought an injunction against
criminal prosecution for their participation in the suspension, because Donaldson,
once suspended, would be considered "dead" under California law. Donaldson and
his doctors built their novel argument upon the recent right-to-die cases in
which the courts recognized a patient's right to have life-sustaining medical
treatment withdrawn. Donaldson argued that his right to privacy and self-determination
is paramount to any state interest in maintaining life. Thus, according to Donaldson,
balancing the state's reasons to end--or "interrupt," as cryonics enthusiasts
would have it--his own life was not necessary. The trial court dismissed the
complaint for failure to state a cause of action, and Donaldson appealed to
the California Court of Appeals. Because the cryonic process would necessarily
involve physician-assisted death, or the aiding, advising, or encouraging of
another to commit suicide, the appellate court affirmed the ruling of the trial
court, holding that Donaldson did not have a constitutional right to assisted
death. Additionally, in light of Donaldson's First Amendment challenge to the
statute, the court upheld the criminal statute prohibiting the aiding, advising,
or encouraging of another to commit suicide. This Note briefly discusses the
process of cryonic suspension and explores the holding of Donaldson in
light of the underlying rationale of the California right-to-die cases. Considering
the contradictory state and individual interests balanced in the right-to-die
cases, this Note concludes that, under a similar balancing test, premortem cryonic
suspension could be permitted under certain circumstances; however, the right
to premortem cryonic suspension may be more effectively recognized through legislation.